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Kagan pledges deference to Congress

Supreme Court nominee Elena Kagan pledged
Monday to be properly deferential to Congress if confirmed as a
justice, while striving "to consider every case impartially,
modestly, with commitment to principle and in accordance with
law."

In excerpts of remarks prepared for her confirmation hearing,
Kagan said the court is responsible for making sure the government
does not violate the rights of individuals. "But the court must
also recognize the limits on itself and respect the choices made by
the American people," she said.

As the opening gavel fell on her nationally televised hearings
before the Senate Judiciary Committee, the 50-year-old solicitor
general and former Harvard Law School dean appeared on track for
confirmation as a result of a Democratic majority on the Judiciary
Committee and in the Senate as a whole.

Kagan stopped by the Oval Office of the White House to receive
best wishes from President Barack Obama on her way to the hearing.
A few moments and little more than a mile distant, she strode with
a smile into the committee room and took her place at the witness
table - where senatorial ritual then required her to sit for hours
while lawmakers delivered prepared speeches from an elevated dais
across the room.

"I believe the fair-minded people will find her philosophy well
within the legal mainstream," said Sen. Patrick Leahy, D-Vt., the
panel's chairman. "I welcome questions but urge senators on both
sides to be fair. No one should presume that this intelligent woman
who has excelled during every part of her varied and distinguished
career, lacks independence."

Moments later, the committee's senior Republican signaled that
Kagan can expect tough questioning beginning on Tuesday. "It's not
a coronation but a confirmation process," said Sen. Jeff Sessions
of Alabama. He said she had "less real legal experience of any
nominee in at least 50 years." And he said her decision to bar
military recruiters from Harvard Law School's career services
office was in violation of the law - a legal conclusion disputed by
the White House.

Leahy and Sessions both said they hoped Kagan would answer
questions candidly, although the chairman also cautioned, "No
senator should seek to impose an ideological litmus test to secure
promises of specific outcomes in cases coming before the Supreme
Court."

Judging by recent confirmation history, there was little chance
that Kagan would run afoul of that admonition. In the past quarter
century, most nominees have pledged fealty to the Constitution and
legal precedent - and little else - in their efforts to win
approval.

Obama nominated Kagan to succeed retiring Justice John Paul
Stevens, a frequent dissenter in a string of 5-4 rulings handed
down by a conservative majority under Chief Justice John Roberts.

Obama, KaganAP Photo/Pablo Martinez Monsivais

Strikingly there were several such rulings in the hours before
the hearing opened. In one, the court struck down part of an
anti-fraud law enacted in 2002 in response to scandals involving
Enron and other corporations.

In another, a 5-4 majority said the right to bear arms can't be
limited by state or local laws any more than by federal
legislation.

One Republican on the committee, Sen. Lindsey Graham of South
Carolina, said he could say with certainty that Kagan's nomination
wouldn't change the balance of power on the court. But in a
reference to Obama, he added, "I hope people will understand that
elections do matter."

A handful of protesters gathered outside the Senate Hart Office
Building across the street from the Capitol, some opposing Kagan's
nomination, others expressing unhappiness that Republicans haven't
done more to block it.

By midmorning about 200 people had claimed tickets for seats in
the hearing room, the first ones arriving as early as 6:30 to line
up in the heat.

"The Supreme Court is a wondrous institution. But the time I
spent in the other branches of government remind me that it must
also be a modest one," Kagan said in the excerpts released in
advance.

In the brief excerpts, she did not expand on her reference to
showing proper deference to congressional lawmakers. But numerous
Democrats complained that under Roberts the court has strayed far
beyond what Congress intended when it wrote laws regarding campaign
finance, workplace rights and other issues. In a similar vein,
Republicans argue that Obama is determined to turn the court in a
more liberal direction.

Several Republicans expressed concerns Kagan would become a
judicial activist along the lines of Justice Thurgood Marshall.

Marshall, confirmed in 1967 as the first black justice in
history, was a civil rights lawyer best known in his earlier career
for successfully arguing the case in which the Supreme Court ruled
that segregation of public schools along racial lines was
unconstitutional. As a young lawyer, Kagan was one of his clerks at
the high court.

In comments earlier on morning television programs, Leahy
predicted that Kagan would be cleared with votes to spare. He
brushed off GOP questions about her lack of judicial experience,
saying there had been many successful justices who had no previous
bench time. He cited Earl Warren, Hugo Black and Robert Jackson.

Sessions said he hopes there won't be a filibuster, but said
he's concerned that Kagan may be "outside the mainstream" of
legal thinking.

Sessions said Republicans have serious questions to resolve
about Kagan, including whether she would be too driven by her
political views if she were to take a place on the high court
bench.

The GOP was set to grill Kagan on controversial issues from guns
to abortion to campaign finance, arguing that she'd bring liberal
politics and an antimilitary bias to the job of a justice.

One of the issues Republicans have already focused on was her
decision, while at Harvard, to bar recruiters from the career
services office because the military's policy on homosexuality
violated the school's nondiscrimination rules. She was also
strongly critical of the "don't ask, don't tell" policy.

The Pentagon said Kagan's stance made Harvard ineligible for
federal funding under a law that required schools to give military
recruiters the same access as other employers, a different
interpretation from Sessions' statement that she had violated the
law.

Kagan's swearing-in would mark the first time three women would
be on the court at the same time. Justices Ruth Bader Ginsburg and
Sotomayor are the other two.